The Local Government (Miscellaneous Provisions) (Northern Ireland) Order 1992

Power of auditor to issue prohibition order

38.—(1) After section 82 of the principal Act there shall be inserted—

“Power of auditor to issue prohibition order.

82A.— (1) The local government auditor may issue an order under this section (a “prohibition order”) if he has reason to believe that the council or any officer of the council—

(a) is about to make or has made a decision which involves or would involve the council incurring expenditure which is unlawful; or

(b) is about to take or has taken a course of action which, if pursued to its conclusion, would be unlawful and likely to cause a loss or deficiency; or

(c) is about to enter an item of account, the entry of which is unlawful; and for the purposes of this section and section 82B, the actions of a committee or sub-committee of the council or of any other person (not being an officer) authorised to act on behalf of the council shall be treated as the actions of the council itself.

(2) A prohibition order is one—

(a) which is addressed to the council or officer concerned;

(b) which specifies the paragraph of subsection (1) which is relevant and the decision, course of action or item of account to which the order relates;

(c) which specifies the date on which (subject to subsection (5)) the order is to take effect, being a date not earlier than the date of service of a copy of the order in accordance with paragraph

(a) or, as the case may be, paragraphs (a) and (b) of subsection (4); and

(d) which requires the council or officer concerned to desist from making or implementing the decision, taking or continuing to take the course of action or, as the case may be, entering the item of account in question.

(3) Where 2 or more local government auditors are appointed in relation to the accounts of any council, a prohibition order may be issued by the auditors acting jointly or by such one of them as they may determine; and, in relation to such an order, any reference in subsections (4) and (5) to the auditor is a reference to the auditor or auditors by whom the order is issued.

(4) A copy of a prohibition order—

(a) shall be served on the council to which, or to an officer of which, it is addressed; and

(b) in the case of an order addressed to an officer, shall also be served on him; and

(c) may be served on such other person or persons as appears to the local government auditor to be appropriate.

(5) A prohibition order shall not have effect unless, not later than the expiration of 7 days from the date of service referred to in subsection (2)(c), the local government auditor serves on the council concerned and on any officer on whom a copy of the order was served under subsection (4)(b), a statement of the auditor’s reasons for the belief referred to in subsection (1).

(6) A prohibition order may at any time be revoked (but not varied) by the local government auditor.

Effect of and appeals against prohibition orders.

82B.— (1) So long as a prohibition order has effect, the council concerned or any officer of that council shall not make or implement the decision, take or continue to take the course of action or, as the case may be, enter the item of account to which the order relates.

(2) A prohibition order—

(a) takes effect, subject to section 82A(5), on the date specified in the order in accordance with subsection (2)(c) of that section; and

(b) continues to have effect, subject to any order or decision of the High Court on an appeal under subsection (3), until revoked under section 82A(6).

(3) Not later than 28 days from the service under section 82A(5) of a statement of reasons relating to a prohibition order, the council concerned (but not any officer of that council) may appeal against the order to the High Court in accordance with rules of court.

(4) On an appeal against a prohibition order under subsection (3), the High Court may make such order as it thinks fit for the payment by the council concerned of expenses incurred by a local government auditor in connection with the appeal.

(5) Any expenses reasonably incurred by a local government auditor in or in connection with the issue of a prohibition order shall be recoverable by him from the council concerned.

(6) In this section “the council concerned”, in relation to a prohibition order, means the council to which, or to an officer of which, the order is addressed.

Supplementary provisions as to prohibition orders.

82C.— (1) In any case where—

(a) before a prohibition order is issued, a council enters into a contract to dispose of or acquire an estate in land, and

(b) before the disposal or acquisition is completed, a prohibition order takes effect as a result of which it is unlawful for the council to complete the disposal or acquisition, the existence of the prohibition order shall not prejudice any remedy in damages which may be available to any person by reason of the council’s failure to complete the contract.

(2) No action shall lie against a local government auditor in respect of any loss or damage alleged to have been caused by reason of the issue of a prohibition order which was issued in good faith; but nothing in this subsection affects the right of a court to award costs against a local government auditor on an appeal under section 82B(3).

Power of auditor to apply for judicial review.

82D.— (1) Subject to section 18(2)(a) of the Judicature (Northern Ireland) Act 1978(1) (no application for judicial review without leave) the local government auditor may make an application for judicial review with respect to—

(a) any decision of a council, or

(b) any failure by a council to act, which (in either case) it is reasonable to believe would have an effect on the accounts of that council.

(2) The existence of the powers conferred on a local government auditor under sections 82A to 82C and this section shall not be regarded as a ground for refusing an application falling within subsection (1) (or an application for leave to make such an application).

(3) On an application for judicial review made as mentioned in subsection (1), the High Court may make such order as it thinks fit for the payment by the council to whose decision the application relates of expenses incurred by the local government auditor in connection with the application.”.

(2) In section 148(1) of the principal Act (general interpretation) after the definition of “prescribed” there shall be inserted—

““prohibition order” means an order issued under section 82A;”.

(1)

1978 c. 23